The Hidden Power of Prosecutorial Discretion

Last spring, four students from Grant High school faced minimum sentences of over seven years in prison after demanding money from another student and pulling out a pocket knife. Though no one was hurt and nothing was stolen, Oregon’s Measure 11 required courts to handle their cases as adults because of the severity of the charges.

Multnomah County prosecutors offered the teenagers plea bargains instead, dropping some of their more serious charges and all potential jail time. However, the Multnomah County District Attorney’s policy automatically kept them within the adult criminal system, drawing backlash from their community. A few months later, the District Attorney revealed an updated policy allowing teenagers to return to the juvenile court system after bargaining down to lesser charges that Measure 11 does not target, demonstrating that the decision of how to handle their cases was not necessarily dictated by any legislature.

Janis Puracal, co-founder of the Oregon Innocence Project, explained, “Sometimes, prosecutorial discretion is about weighing policy decisions—decisions that are outside the specific legal context—to figure out what we as a community want to charge.”

In America, prosecutors have a large degree of choice in carrying out their jobs. They can decide whether to pursue maximum or minimum sentences, to advise treatment instead of incarceration, or even to drop all charges entirely. This especially applies to lawyers prosecuting small crimes under state jurisdiction, where there are too many attorneys and too many cases to allow any strict oversight over the way each attorney handles their individual cases.

“Prosecutorial discretion is very broad,” said former prosecutor Andrew Lauersdorf. “It’s exercised in a number of different ways, and at the end of the day, it’s really about attempting to do justice under a particular set of circumstances.”

However, not all prosecutors make use of this freedom. In a weighty TED Talk, prosecutor and juvenile justice reform advocate Adam Foss described the prevalent culture among some prosecutors of pushing every case to trial, to the maximum sentence and the win. In the current system, he said, attorneys are not exercising their discretion in favor of the people often enough.

An attorney’s discretion can take many forms, from opting for community service for a young, first-time offender to helping someone who stole food for their family obtain food. In theory, prosecutors can spend the resources that would have gone to preparing for trial to make a more lasting effect and address the root causes of the problems. Instead of sending people to jail for small crimes and harming the accused’s chances at bettering their lives, prosecutors can be a source of help. While this obviously does not apply to larger, more violent, and repeated crime, it could aid in addressing the problem of overcriminalization, including harsh sentencing laws and the mass incarceration epidemic, especially where minor drug infractions are concerned.

However, because individual discretion is such a large part of a prosecutor’s job, attorneys’ personal biases play as much of a role in the criminal justice system as police officers’ biases. “That’s why it’s dangerous,” Puracal said. “It’s a good thing in terms of saving community resources and giving people a second chance, but it’s also rife with abuse […] If you get a prosecutor who doesn’t like a particular group of people or who wants to send a particular political message, you’re going to see abuse of discretion.”

For that reason, it matters that America’s prosecutors are overwhelmingly white and disproportionately male, continually making life-changing choices for a group of people whose population they do not accurately represent. In Multnomah County, there are only three black district prosecutors. When examining the trends of harsher sentences for people of color and uneven inmate demographics, America should not overlook the role of the prosecutor even as it acknowledges the police and jury’s roles. And, just as our culture encourages girls and students of color to pursue STEM fields, it should encourage them to explore this area of the law, to build a more representative prosecutorial force in the future.

This is not to say that prosecutors around the country are not already using their discretion to respond to laws they believe are unjust. In New York, prosecutors have dismissed cases involving suspects who were taken in after “stop and frisk” procedures, held minor amounts of marijuana, or were arrested for solicitation. Sometimes, entire district attorneys’ offices came to a consensus among prosecutors to dismiss these types of cases. Even the Department of Homeland Security recommended that its officials use their discretion when prioritizing which undocumented immigrants to deport and which to ignore for the time being, based upon level of threat to national security and previous instances of crime. ICE itself can choose to administratively close certain immigrants’ cases on an individual basis, meaning that the agency will no longer actively push for that person’s deportation.

In Multnomah County, Lauersdorf said, prosecutors often put first-time offenders for drug crimes and DUIs into diversion programs, where they receive treatment while under probation. After about six months, prosecutors can then decide to drop the charges, leaving the accused with an arrest record but no record of criminal charges.

Encouraging prosecutors to exercise their discretion more often, however, may not necessarily solve the problem, Lauersdorf added. Because of the lack of regulation that is involved by definition, a prosecutor could decide to pursue maximum sentencing for every time that another decides to drop charges entirely. And reaching a point where prosecutors are “exercising their discretion arbitrarily” would do more harm than good, leaving our communities uncertain of where the law stands and how it could be applied at any given moment.

Though police and prisons are often the most visible faces of the criminal justice system, prosecutors can make huge impact within the process, too. That’s why we cannot overlook President Trump’s decision to force 46 federal prosecutors to resign. Prosecutors represent entire states—or even the United States as a whole—each time they take a case to trial. They stand for the people’s interest, not their own or even the victim’s, and many prosecutorial positions are elected. We should not let ourselves forget the immense power our prosecutors hold through their discretion, and we should make it clear we expect them to exercise it to help our communities.